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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11619
Non-Argument Calendar
________________________
D.C. Docket No. 0:19-cv-60630-RAR
WENDY ST. ELIEN,
Plaintiff - Appellant,
versus
ALL COUNTY ENVIRONMENTAL SERVICES, INC.,
VICTOR WEST, III,
DAHLIA WEST,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 18, 2021)
Before WILSON, ROSENBAUM, and NEWSOM, Circuit Judges.
NEWSOM, Circuit Judge:
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This case presents the following question: Does evidence that an employee
makes three to five phone calls per week to out-of-state customers and vendors
provide a legally sufficient basis for a reasonable jury to find that the employee
falls within the coverage of the Fair Labor Standards Act? We hold that it does.
Because the district court erred in concluding otherwise, we vacate its judgment
and remand for further proceedings.
I
All County Environmental Services, Inc. provides pest-control services for
homes and businesses in Southeast Florida. All County has only one office,
located in Broward County, and Wendy St. Elien worked there as an administrative
assistant. St. Elien sued All County, All County’s president Victor West III, and
Victor’s wife Dahlia West, alleging that they had violated the Fair Labor Standards
Act by failing to pay her overtime wages.
The FLSA provides, subject to exceptions not relevant here, that—
[N]o employer shall employ any of his employees who in any
workweek is engaged in commerce or in the production of goods
for commerce, or is employed in an enterprise engaged in commerce
or in the production of goods for commerce, for a workweek longer
than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less
than one and one-half times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1).
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Section 207(a)(1)’s first clause—which refers to “any of his employees who
in any workweek is engaged in commerce or in the production of goods for
commerce”—pertains to what we’ve called “individual coverage” and requires us
to examine the individual employee’s activities. See Thorne v. All Restoration
Servs., Inc.,
448 F.3d 1264, 1266 (11th Cir. 2006). The second clause—which
refers to “an enterprise engaged in commerce or in the production of goods for
commerce”—points to what we’ve termed “enterprise coverage” and requires an
assessment of the enterprise’s activities. See Polycarpe v. E&S Landscaping Serv.,
Inc.,
616 F.3d 1217, 1220 (11th Cir. 2010).
This case went to trial on the question whether St. Elien’s interstate contacts
sufficed to bring her within the FLSA’s ambit through § 207(a)(1)’s “individual
coverage” clause. At trial, St. Elien testified that she called All County’s out-of-
state customers and vendors on the phone between three and five times a
week. She explained that many of the out-of-state customers were “snowbirds”—
those who live in colder climes much of the year and then head down to Florida
during winter. St. Elien called these customers to ask for permission to charge
their credit cards for services rendered at their Florida properties or to get their go-
ahead before All County entered their premises. As to the out-of-state vendors,
St. Elien called their corporate headquarters to discuss billings and payments to
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those companies for purchases that All County had made at those companies’ local
stores.
Having heard St. Elien put on her case for two days, the district court
granted the defendants’ Rule 50(a) motion for judgment as a matter of
law. The district court’s ruling hinged on the following portion of our decision
in Thorne:
[F]or an employee to be “engaged in commerce” under the FLSA, he
must be directly participating in the actual movement of persons or
things in interstate commerce by (i) working for an instrumentality of
interstate commerce, e.g., transportation or communication industry
employees, or (ii) by regularly using the instrumentalities of interstate
commerce in his work, e.g., regular and recurrent use of interstate
telephone, telegraph, mails, or travel.
448 F.3d at 1266.
On the district court’s reading of that passage, a plaintiff must, as a
necessary prerequisite, present evidence that she “direct[ly] participat[ed] in the
actual movement of persons or things in interstate commerce,” such that the
plaintiff’s proof that she “regularly used the instrumentalities of interstate
commerce,” without more, wouldn’t establish individual coverage. And in this
case, the district court found that St. Elien failed to satisfy that threshold condition
because “there [was] simply no evidence in the record that [she] directly
participated in the actual movement of persons or things in interstate
commerce.” Regarding the phone calls, the court said that it was “unpersuaded
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that speaking on the phone with ‘snowbirds’ to obtain approval for local work and
payment processing constitutes ‘direct participation’ in interstate
commerce.” And, the court continued, calling those customers on the phone to
discuss their payments or gain permission to enter their properties did “not alter the
fundamentally local nature of [St. Elien’s] work.” Accordingly, the court held that
St. Elien wasn’t individually covered by the FLSA and that the defendants were
entitled to judgment as a matter of law.
This is St. Elien’s appeal. 1
II
First, the statutory text. We must ask whether the evidence was sufficient to
support a jury finding that St. Elien was an “employee[] who in any workweek . . .
engaged in commerce or in the production of goods for commerce.”
29 U.S.C.
§ 207(a)(1). Because there’s no contention that St. Elien produced goods for
commerce, the sole question is whether a rational jury could have found that she
was “engaged in commerce.”
1
“A ruling on a party’s motion for judgment as a matter of law is reviewed de novo, applying the
same legal standard as the district court.” McGinnis v. Am. Home Mortg. Servicing, Inc.,
817
F.3d 1241, 1254 (11th Cir. 2016) (quotation marks omitted). To grant such a motion, the court
must “find[ ] that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue,” Fed. R. Civ. P. 50(a)(1), even when all logical inferences are made
for, and the record is viewed in the light most favorable to, the nonmovant, McGinnis, 817 F.3d
at 1254.
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We hold that it could have. The FLSA defines “[c]ommerce” to mean
“trade, commerce, transportation, transmission, or communication among the
several States or between any State and any place outside thereof.”
29 U.S.C.
§ 203(b) (emphasis added). As a matter of plain text, then, it would seem that
St. Elien “engaged in commerce” because she engaged in “communication . . .
between any State and any place outside thereof.” After all, she was in Florida and
she called—that is, engaged in communication with—customers and vendors in
other states and, in one instance, another country. And she did so three to five
times a week as part of her work for All County. That, we think, is sufficient to
permit a rational jury to conclude that St. Elien was individually covered by the
FLSA.
The district court felt constrained to reach the opposite conclusion based
largely on our decision in Thorne and, in particular, our statement (quoted earlier)
that—
[F]or an employee to be “engaged in commerce” under the FLSA, he
must be directly participating in the actual movement of persons or
things in interstate commerce by (i) working for an instrumentality of
interstate commerce, e.g., transportation or communication industry
employees, or (ii) by regularly using the instrumentalities of interstate
commerce in his work, e.g., regular and recurrent use of interstate
telephone, telegraph, mails, or travel.
Thorne,
448 F.3d at 1266.
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Based on that passage, the district court rejected the contention that the
“testimony that [St. Elien] regularly spoke to out-of-state customers [was]
sufficient to submit the case to the jury.” The court acknowledged that
“allegations that a plaintiff directly participated in interstate commerce by placing
telephone calls to out-of-state customers is sufficient to navigate a plaintiff through
the courthouse door,” but held that, ultimately, more was required under Thorne,
such that St. Elien’s communications with out-of-state customers (and, we assume,
vendors) left no room for a reasonable jury to find in her favor.
That seems to us a plausible but ultimately mistaken reading of Thorne. St.
Elien argues, and we agree, that the phrase in Thorne on which the district court
focused—“he must be directly participating in the actual movement of persons or
things in interstate commerce by”—is not a freestanding condition imposed on
each of the latter two components of the sentence. Rather, those two components
are independent ways “by” which one can show “direct[] participat[ion].” That is,
one who, within the meaning of sub-clause (ii), “regularly us[es] the
instrumentalities of interstate commerce in his work, e.g., regular and recurrent use
of interstate telephone, telegraph, mails, or travel” is one who “directly
participat[es] in the actual movement of persons or things in interstate commerce.”
Thorne,
448 F.3d at 1266.
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The remainder of Thorne supports that interpretation. As evidence, consider
how Thorne frames the individual-coverage issue elsewhere. For instance, the
Court said that “[f]or individual coverage to apply under FLSA, [the plaintiff] must
have provided evidence at trial that he was (1) engaged in commerce or (2)
engaged in the production of goods for commerce.”
Id. Then, within its
discussion of the “engaged in commerce” route to coverage, the Court discussed
“the actual movement of persons or things in interstate commerce.”
Id. And it did
so based on regulations that specify how the FLSA applies in the context of the
construction industry. See
id. (citing
29 C.F.R. § 776.23(d)(2) (“Employment in
the construction industry”);
id. § 776.24 (“Travel in connection with construction
projects”). Notably, the Court observed that the plaintiff there “did not produce
evidence that he corresponded with merchants outside the state of Florida using the
mail, phone, or fax . . . .” Id. at 1267. That caveat—which seems to describe
precisely the kind of evidence that St. Elien produced here—strongly suggests that
the Court didn’t mean to graft an “actual movement of persons or things”
evidentiary requirement onto the definition of “commerce” for all FLSA claims.
Accordingly, we don’t think that Thorne forecloses the possibility that a reasonable
jury could find for St. Elien.
St. Elien also directs our attention to regulations promulgated by the
Department of Labor that counsel against the district court’s reading of the FLSA.
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While we don’t find § 207(a)(1) ambiguous—and thus needn’t wade into
Chevron’s waters—we do note that a number of DOL’s regulations buttress our
reading of the text. Consider, for example,
29 C.F.R. § 779.103:
Typically, but not exclusively, employees engaged in interstate or
foreign commerce include employees in distributing industries, such
as wholesaling or retailing, who sell, handle or otherwise work on
goods moving in interstate commerce as well as workers who order,
receive, pack, ship, or keep records of such goods; clerical and other
workers who regularly use the mails, telephone or telegraph for
interstate communication; and employees who regularly travel across
State lines while working.
29 C.F.R. § 779.103 (emphasis added). The same regulation explains that
“[e]mployees are ‘engaged in commerce’ within the meaning of the Act when they
are performing work involving or related to the movement of persons or things
(whether tangibles or intangibles, and including information and intelligence)
among the several States or between any State and any place outside thereof.”
Id.
(emphasis added). Under DOL’s understanding of matters, then, clerical workers
making phone calls to out-of-state entities to exchange information fall within the
FLSA’s ambit. Other regulations reflect the same understanding that this kind of
work satisfies the “engaged in commerce” criterion. See, e.g.,
29 C.F.R.
§ 776.23(d)(2) (“[E]mployees who regularly use instrumentalities of commerce,
such as the telephone, telegraph and mails for interstate communication are within
the scope of the Act.”);
id. § 776.10(b) (“[S]ince ‘commerce’ as used in the Act
includes not only ‘transmission’ of communications but ‘communication’ itself,
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employees whose work involves the continued use of the interstate mails,
telegraph, telephone or similar instrumentalities for communication across State
lines are covered by the Act.”).
* * *
For the foregoing reasons, we hold that a reasonable jury could find that St.
Elien was covered under the FLSA. We therefore VACATE the district court’s
judgment and REMAND for further proceedings consistent with this opinion.
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